Oct 25, 2023

EEOC Cracks Down On AI Use In Hiring

By: Marissa Cerkoney

Artificial intelligence (“AI”) has taken the world by storm. Professors are having to warn their students not to use AI to generate research papers. Professionals are uploading new LinkedIn headshots of themselves that were created by AI rather than an actual photographer. The advancement, availability, and “user-friendliness” of AI is changing many aspects of society, including how employers conduct their hiring processes. Typically, the hiring process includes filling out an application, conducting some sort of background check, and having an interview. By involving AI, employers have found that they can streamline this process, specifically when it comes to screening applicants. However, employers should be prepared for potential discrimination actions that may arise from using AI to screen applicants.

In 2022, the Equal Employment Opportunity Commission (“EEOC”) commenced a lawsuit against a tutoring company, iTutorGroup Inc., for its use of AI in violation of anti-discrimination laws. iTutorGroup hired tutors based in the United States to provide online tutoring from their homes or other remote locations. According to the EEOC’s lawsuit, iTutorGroup programmed their tutor application software to automatically reject female applicants aged 55 or older and male applicants aged 60 or older. iTutorGroup rejected more than 200 qualified applicants based in the United States because of their age, which was a violation of the Age Discrimination in Employment Act (“ADEA”).

In August 2023, the EEOC and iTutorGroup were able to reach a settlement, which included iTutorGroup paying $365,000 to the applicants that were automatically rejected due to age. Additionally, the settlement decree provided for significant non-monetary relief, including extensive and continuing training, issuance of a new anti-discrimination policy, and injunctions against discriminatory hiring based on age or sex and requesting applicant’s birth dates. The EEOC will be monitoring iTutorGroup’s compliance with these obligations for at least the next five years.

The Takeaway:

EEOC v. iTutorGroup, Inc., et al., was the first lawsuit brought by the EEOC for employment discrimination involving AI, but it certainly won’t be the last. The EEOC has made it clear it will put significant focus on ensuring that employers are complying with anti-discrimination laws when using AI. With AI becoming more prevalent in the hiring process, it is important that employers ensure that their use of AI is in compliance with federal, state, and local laws. Employers are well advised to seek legal counsel when confronted with possible employment discrimination.

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Reprinted with permission from an article submitted for publication in the October, 2023 Southwest Area Human Resource Association newsletter.